Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

O'Brien v. Garcia

United States District Court, S.D. California

December 20, 2019

KORY T. O'BRIEN, CDCR #AM-1378, Plaintiff,
v.
ALDO GARCIA, Correctional Plant Ops. Supervisor; JORGE SANTANA, Associate Warden; DANIEL PARAMO, Retired Former Warden; RAQUEL BUCKEL, Associate Warden; PATRICK COVELLO, Warden; C. MURPHY, Appeals Examiner; M. VOONG, Chief - Office of Appeals, Defendants.

         ORDER: 1) DISMISSING DEFENDANTS AND CLAIMS PURSUANT TO 28 U.S.C. § 1915(e)(2) AND 28 U.S.C. § 1915A(b) AND 2) DIRECTING U.S. MARSHAL TO EFFECT SERVICE OF FIRST AMENDED COMPLAINT UPON DEFENDANT GARCIA PURSUANT TO 28 U.S.C. § 1915(d) AND Fed.R.Civ.P. 4(c)(3)

          Hon. John A. Houston United States District Judge

         Plaintiff Kory T. O'Brien, a prisoner proceeding pro se and incarcerated at Richard J. Donovan Correctional Facility (“RJD”), in San Diego, California, filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 14, 2019. See Compl., ECF No. 1.

         I. Procedural Background

         In his original Complaint, Plaintiff claimed various RJD Wardens, a “Plant Ops” Supervisor, and two inmate appeals officials denied him equal protection and exposed him to harmful conditions of confinement in July and August 2017, and then retaliated against him in May 2019 after he continued to complain and file multiple grievances. See Compl., at 1-4, 8, 14. He sought injunctive relief and “damages to be claimed at a later date.” Id. at 19. Plaintiff did not pay the civil filing fee at the time of filing, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF No. 2).

         On August 26, 2019, the Court granted Plaintiff's Motion to Proceed IFP, but dismissed his Complaint sua sponte and in its entirety based on his failure to state a claim upon which relief can be granted pursuant to the mandatory screening required by 28 U.S.C. § 1915(e)(2) and § 1915A(b). See ECF No. 6. Plaintiff was provided notice of his pleading deficiencies, and was granted leave to amend them. Id. at 8-17.

         On September 30, 2019, Plaintiff filed a First Amended Complaint (“FAC”) (ECF No. 7) re-naming all the same Defendants and re-alleging four First, Eighth, and Fourteenth Amendment “Counts” or causes of action. See FAC at 2-23. He continues to seek injunctive relief and an unspecified amount of damages. Id. at 25.

         II. Screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A

         A. Standard of Review

         Because Plaintiff is a prisoner and is proceeding IFP, his FAC, like his original Complaint, also requires a pre-answer screening which the Court conducts sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). As Plaintiff is now aware, under these statutes, the Court must dismiss a prisoner's IFP complaint, or any portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

         Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).

         B. Allegations in FAC

         As he did previously, Plaintiff divides the claims in his FAC into four separate causes of action. In Count 1, he claims Defendant A. Garcia, a Plant Operations Correctional Supervisor at RJD, violated his First Amendment rights by retaliating against him for having filing numerous CDCR 22s, CDCR 1824s and CDCR 602 inmate appeals related to the lack of clean air vents and cable and power outlets in his cell.[1]See FAC at 4-8. Specifically, Plaintiff claims Garcia, who is “second in command” and responsible for approving all “work orders, ” either authorized or ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.